Philip Field is trying to clear his name by arguing that while he acted corruptly, being a corrupt MP isn't against the law.

Phillip Field has had his day before the Supreme Court, arguing that his 11 convictions for "Corruption and bribery of member of Parliament" were wrongly entered.

So it goes. All individuals - yes, even this guy, despite what Stephen Franks might think - have a right to appeal against what they believe to be a flawed criminal conviction. And at least a couple of members of the Supreme Court obviously saw enough importance in Field's argument for it to pass the statutory bar to their hearing from him.

But before we get too excited about this appeal, let's put it in some context. First up, as I said back at the time of his conviction:

It goes without saying that the guilty verdicts in the Taito Phillip Field case are a cause for real disappointment and anger. He’s the guy who means that henceforth our Parliament as an institution can no longer claim proudly to be free from corruption. And as Field’s prosecutor Simon Moore put it, the very existence of “bribery and corruption strikes very much at the heart of who we are as a people.”

So Field is trying to climb out of a pretty deep and dark hole through this appeal; the stigma of being "New Zealand's first corrupt sitting MP" is a pretty ugly one to carry around for the rest of your life. I can see why it's worth him fighting long and as hard to remove it - especially when it seems he still doesn't think he did anything wrong.

But notice whatField isn't appealing against - his 15 convictions of wilfully attempting to obstruct or pervert the course of justice. Therefore, even if the Supreme Court were to overturn his convictions for "Corruption and bribery of member of Parliament", he'll still be guilty of committing some extremely serious crimes.

(Actually, there'd be a degree of irony in the Court overturning the convictions based on his actually accepting work from the Thai tilers while leaving in place the convictions for trying to stop anyone finding out what they did for him. As with Watergate, it ain't the crime that gets you, it's the coverup!)

And, finally, there's the nature of Field's argument before the Supreme Court - at least, as I understand it from media reports. You see, Field is not denying that he received beneficial work from the Thai tilers to the tune of some tens-of-thousands of dollars. Nor does he seem to be denying that this work was done by them out of a sense of gratitude for his help with their immigration applications. He can't really deny this in the Supreme Court, given the jury's decision on the facts at the original trial.

Rather, his argument is that receiving this benefit - even if corruptly gained as the result of his actions as an MP - was not a crime because the Crimes Act 1961, s. 103(1) only outlaws the receipt of bribes. Here's the relevant section:

Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his capacity as a member of Parliament.

Field then claims he didn't receive a "bribe" from the Thai tilers because their work for him did not influence his actions on their behalf. The proof of this? Well, look at all the other people he helped with immigration issues who provided him no benefit at all. So, if he would have helped out with the Thai tiler's immigration application irrespective of whether they did work for him or not, it cannot constitute a bribe and so he did not commit a crime (or, at least, did not breach s.103(1)).

In effect, he is saying "yes, I was 'corrupt' in that I accepted benefits from those I was helping as an MP that were given to me because of my actions as an MP ... but because that benefit did not constitute a "bribe" I committed no criminal offence because the Crimes Act does not generally prohibit profiting from public office."

This is, to put it mildly, a pretty legalistic approach to the issue. Even if it works to wipe Field's conviction, you could hardly say it improves his moral position any. I mean, would anyone think much better of Phillip Field if it were shown that he abused his position as an MP to personally gain from the gratitude shown by those he helped ... it's just he didn't give them anything back in return?

Furthermore, if this argument flies, then it opens up a fairly big loophole in our criminal code. Let me illustrate this claim by way of an analogy, which I hasten to note is completely invented and meant in no way to reflect reality.

Imagine Telecom came to Steven Joyce and said to him "if you give us the government contract to roll out broadband services, we'll make you a director of Telecom". That would be an attempt to bribe him, and if the Minister accepted, he would be committing a criminal act. (Actually, he'd be in breach of s. 102(1), but as it's worded just as s.103(1), the point is the same).

Now imagine that, after Steven Joyce gave Telecom its contract, the company comes to him and says "thanks a lot, Steven! In recognition of all your help to us, we'd like to make you a director of the company." Well, if Philip Field's argument is right, Steven Joyce could accept even this explicit, direct quid-pro-quo benefit without breaking the criminal law (or, at least, s.102(1)). After all, the benefit comes after the contract was given, so there is no "bribe" to induce the Minister to do anything he wouldn't have done anyway.

I don't think there's many of us would feel particularly comfortable about such a result. We do not want our public figures - politicians, judges or public servants - gaining personally from their official positions, irrespective of whether they change their decisions or actions as a result of that personal gain. The wrong is in profiting from what belongs to the public, not just in delivering a desired decision for cash.

But that said, just where does the line fall here? If, for example, the Government's bankers give Ministers free access to the best seats at events like rugby games and Jon Bon Jovi concerts, is that "corruption" that the criminal law should be interested in? Sure, the Ministers will say it has no effect on their decision making ... but that's exactly Phillip Field's defence. Or is it relevant that the seats offered by Westpac are worth only a few hundred dollars, and we're comfortable with Ministers and the like having a little bit of cream on their cake ... whereas Field's gain ran into the tens-of-thousands, which is just too greedy?

So, at a gut level Field's case seems a relatively easy one - letting those you are helping as an MP pay you through their labour just must be against the law. But why it must, and more particularly, how it must be while still allowing Westpac to give Ministers hundreds of dollars of entertainment, is somewhat trickier to explain. Which will make the Supreme Court's decision in Phillip Field's case an interesting one to see.

And that's all without getting into why it is a corrupt practice to directly pay people $20 to vote for you, while promising them thousands of dollars in tax-cuts (or interest free student loans) is completely legal ... .

Comments (4)

Looking at S102 and S103 of the Crimes Act, it also seems to allow for prosecution of those who attempt to bribe a Minister or Member of Parliament. I'm not fluent with the translation between individuals and businesses, or very much legal at all for that matter, but does this also mean that the hypothetical bankers could be hypothetically prosecuted if it were decided that an MP or Minister were hypothetically being offered bribes, irrespective of whether they were accepted?

I realise we should be expecting the highest standards from our MPs, and it's probably in nobody's interests to prosecute disadvantaged Thai wannabe immigrants, but I also find it quite annoying that certain people and especially large businesses that should know better, should even be trying to gain favour over others.

Again, I suppose it's often not so clear cut and there has to be a line here somewhere. Wouldn't want to make people paranoid that they could be prosecuted if they buy someone a coffee.

The legalities aside one wonders if such behaviour were effectively sanctioned whether we'd sail close to the "revolving door" issues the US are grappling with where the "regulators" suddenly move to high paying positions with the "regulated". Its not bribery to take a highly paid job in a company that you just passed legislation through to benefit... is it?

Yes - the briber is as guilty as the bribee ... but in Field's case, I imagine the decision was that the Thais were "victims" of a sort, as well as needing their evidence to convict Field, so no charges were laid. But in my (again, completely hypothetical) Telecom example, the company would be as guilty as the Minister.

The Westpac case doesn't involve criminal activity, as there is no giving/accepting of a benefit "corruptly". Why not? Well, it seems to me that there's an irreducable element of "we know it when we see it" here ...

Justin,

So long as the job offer isn't directly tied to the beneficial legislation, then no - there is no crime. But a job given as thanks/a quid pro quo for a decision (even with no pre-existing agreement the job would follow from the act)? I guess that's what Phillip Field's case will tell us!

But notice what Field isn't appealing against - his 15 convictions of wilfully attempting to obstruct or pervert the course of justice.

TPF did appeal those to the Court of Appeal, and did seek leave to appeal those to the Supreme Court. Leave was denied on that aspect of the application.

But on the live point: if electoral law recognises a difference between bribery and treating, why wouldn't a decision to ban bribery of MPs, but not ban the treating of MPs, not be given effect to? Though I can't say I've thought this through a great deal.